UPDATE: Common law was abolished in New Jersey in 1979. Another source.

I am a journalist with minimal legal experience. Over the past three weeks I attended a probable cause "hearing" in New Jersey. The accused is a high-profile former government official, and therefore the determination of probable cause was brought before a municipal judge.

The complainant is a citizen of New Jersey and, at the time of the crime, the accused was the chairman of the New Jersey-New York Port Authority. This is a position nominated by the New Jersey Governor and confirmed by the New Jersey legislature. The specific complaint is for official misconduct.

Yesterday, on the third day of the hearing (here is coverage of day one, and day two pre and post), the judge ruled that the complainant did not have standing to bring the complaint, and therefore probable cause was not found. Specifically, the judge said the complainant was not "close enough" to the crime to be substantially injured by it.

Here is the full text of the citizen's complaint rule for New Jersey, as on page 4 of this document: RULES GOVERNING THE COURTS OF THE STATE OF NEW JERSEY RULE 7:2. PROCESS:

Issuance of Complaint-Warrant (CDR-2) or Summons

(a) Authorization for Process

(1) Citizen Complaint.  A Complaint-Warrant (CDR-2) or a summons charging any offense made by a private citizen may be issued only by a judge or, if authorized by the judge, by a municipal court administrator or deputy court administrator of a court with jurisdiction in the municipality where the offense is alleged to have been committed within the statutory time limitation. The complaint-warrant (CDR-2) or summons may be issued only if it appears to the judicial officer from the complaint, affidavit, certification or testimony that there is probable cause to believe that an offense was committed, the defendant committed it, and a Complaint-Warrant (CDR-2) or summons can be issued. The judicial officer's finding of probable cause shall be noted on the face of the summons or warrant and shall be confirmed by the judicial officer's signature issuing the Complaint-Warrant (CDR-2) or summons. If, however, the municipal court administrator or deputy court administrator finds that no probable cause exists to issue a Complaint-Warrant (CDR-2) or summons, or that the applicable statutory time limitation to issue the Complaint-Warrant (CDR-2) or summons has expired, that finding shall be reviewed by the judge. A judge finding no probable cause to believe that an offense occurred or that the statutory time limitation to issue a Complaint-Warrant (CDR-2) or summons has expired shall dismiss the complaint.

(The statute of limitations, territorial jurisdiction, and evidential conditions have all been met.)

According to the complainant, who is a non-practicing lawyer, there are no conditions in this rule that say a citizen must be a particular "distance" from the crime. All New Jersey citizens are under the jurisdiction of the chairman of the state Port Authority. The rule also has no limitations to the kind or severity of the crime a citizen can complain about. It specifically says "...charging any offense made by a private citizen may be issued...."

Finally, I believe that by definition, the New Jersey statute for official misconduct affects all citizens in the jurisdiction of a government employee. (This is not unlike a violent crime occurring a few blocks away. You are affected by it because it affects your neighborhood's reputation.)

At the bottom of this post is the complainant's argument about standing, which is excerpted from his legal brief.

As the complainant told me in an interview after the decision, "Nobody has ever said that a citizen needs special standing, beyond being a citizen, to bring a citizen's complaint." He filed many of these complaints over the past 20 years, with more than one being upheld just this year (one is discussed in the below screenshots). He later said that this is the first time in New Jersey history that a citizen has been denied standing in filing a citizen's complaint, in this manner. (I am unsure how to independently confirm this.)

The complainant is going to file a complaint with the Advisory Committee For Judicial Conduct, and an "action in lieu of prerogative writ", stating the judge acted outside of his jurisdiction or scope, and to force him to consider the case on its merits.

My questions:

Is official misconduct simply the act of "abusing public office" (or close to that)? If so, it implies that all citizens in their jurisdiction are injured. Or is official misconduct the specific actions underneath the misconduct (lane closures, bribing United Airlines, etc.)? If it's this, it implies that only certain people are injured (those stuck in traffic, flying on the plane, etc.).

Did the judge act outside of the scope of his duties by even considering standing in a probable cause determination? What in the citizen's complaint rule provides for the citizen's "closeness" to the crime? If nothing, then what else could the judge have based that decision on?

(Are these concepts applicable nationwide, or are some unique to New Jersey?)

Finally, I may have the opportunity to submit a small number of questions to the judge directly. I would appreciate some suggestions that would most effectively get relevant information from him.


UPDATE: Common law was abolished in New Jersey in 1979. Another source.

From complainant's legal brief:

screenshot 1 of 3 screenshot 2 of 3 screenshot 3 of 3

  • 2
    This is very interesting, but I don't think it's amenable to an answer here: This is a real case, and nobody here is going to be capable of providing more compelling and pertinent argumentation or information than the complainant on the one hand, the judge on the other, and the applicable statutes; and you have provided links to all of those. (I will note that I find Brennan's tone entertaining, and I would like to review more of his work!)
    – feetwet
    Apr 26, 2017 at 2:44
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    @feetwet it is important that I get opinions of those that are unrelated to this case. I am swimming in legalese that I don't understand, and of course I can ask the complainant, and may have the opportunity to ask the judge a question or two (although I am skeptical he will acknowledge the correspondence)., But with as high profile case as this is, I really need advice and insight from those who have nothing to do with it. (And I can confirm. Brennan's tone is indeed entertaining. A down to earth guy who makes a habit of standing up to power.) Apr 26, 2017 at 3:15
  • 2
    I mean to say, as a journalist, independent sources are critical, especially in a situation like this, in which I have no expertise, Apr 26, 2017 at 3:24
  • This is far too broad, even possibly if you split the three questions up. Take forum suggestions to a forum. VTC.
    – user4657
    Apr 26, 2017 at 4:27
  • Followup question: law.stackexchange.com/questions/18628/… Apr 27, 2017 at 13:52

1 Answer 1


Is official misconduct simply the act of "abusing public office" (or close to that)?

There is no clear definition of malfeasance in office, or rather, there are many different definitions because there are so few appeals court judgments about it. Common elements of what definitions there are, are:

First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties.

It does not, necessarily, require that the malfeasance be criminal or unlawful in and of itself (i.e. things that would be unlawful if the person wasn't a public official), however, it really helps in obtaining a conviction.

Did the judge act outside of the scope of his duties by even considering standing in a probable cause determination?

Absolutely not. Standing is one of the matters a judge is required to consider. He may have got the decision wrong but that is why we have appeals courts.

What in the citizen's complaint rule provides for the citizen's "closeness" to the crime? If nothing, then what else could the judge have based that decision on?

It is a fundamental part of the common law that a person must have standing to bring a case. A statute can specifically grant or deny a class of people standing but if it doesn't the common law rule flows through.

For a person to have standing absent a grant in the specific statute they must be sufficiently close to the act or omission that they have suffered damage or may yet do so. In general, just because the act or omission affects "all citizens" or "all taxpayers" is not generally enough - it must affect you personally and substantially enough to warrant the state dedicating scant resources to it. Time a court spends dealing with any particular case is time it cannot spend on every other case - probable cause is the judicial equivalent of medical triage.

  • 1
    So if you steal from one person you'll go to jail but steal from an entire state and you'll be fine? Would he have had better chances if he brought it as a class action with many New Jersey Citizens?
    – SGR
    Apr 26, 2017 at 7:40
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    @SGR: I hope you're not being disingenuous. What the answer says is that if you steal from an entire state you can be prosecuted by the state, but not by a random citizen of that state. And if you yourself don't have standing to sue, bringing along a crowd of neighbours who don't have standing either will not improve the situation. Apr 26, 2017 at 8:48
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    @TimLymington : That's interesting. England and Wales have a concept of "private prosecution" where a private individual (or other legal person) can prosecute (almost) any crime. (The exception is where the crime requires the permission of the Attorney General to prosecute. These are things like "testing on animals" crimes, where absent the requirement, there would be too many nuisance prosecutions.) Note that if the powers that be don't like your prosecution, the Attorney General can take it over and then offer no evidence. Apr 26, 2017 at 9:01
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    @TimLymington Not being disingenuous at all. It just seems odd that a private citizen has less rights to seek recourse if the crime was committed to many thousands of people than if the crime had happened to them individually. Almost reminds me of "One death is a tragedy, a thousand is a statistic".
    – SGR
    Apr 26, 2017 at 9:15
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    @jpmc26: That's how triage often works now. The original meaning was to divide injured soldiers into three (hence tri). One group that is going to die, so don't bother to treat; one group that is going to be OK, so don't bother to treat; the group that will die if not treated but won't if treated, so treat. In major disasters, I suspect the original meaning still holds. Apr 26, 2017 at 9:50

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